United Mexican States v Cabal - [2001] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M74 of 2001

B e t w e e n -
UNITED MEXICAN STATES
Applicant
and
CARLOS CABAL (PENICHE)
First Respondent
LISA HANNAN M
Second Respondent
ATTORNEY-GENERAL (COMMONWEALTH)
Third Respondent
Application for a stay and expedition

GLEESON CJ
GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 25 JULY 2001 AT 10.18 AM

(Continued from 20/7/01)

MR G.T. PAGONE, QC: If the Court pleases, I appear with MS K.P. HANSCOMBE for the applicant. (instructed by the Director of Public Prosecutions (Commonwealth))

MR G. GRIFFITH, QC: If the Court pleases, I appear with MS D.S. MORTIMER for Mr Cabal. (instructed by Fernandez Canda Gerkens)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth: If the Court pleases, I appear with MR B.E. WALTERS for the third respondent. (instructed by the Australian Government Solicitor)

GLEESON CJ: There is a certificate from the Deputy Registrar to the effect that she has been informed by the Deputy Chief Magistrate on behalf of Magistrate Hannan, the second respondent in this matter, that the second respondent does not wish to appear and will abide by the order of the Court. Yes, Mr Pagone.

MR PAGONE: If the Court pleases. Your Honours have before the Court today a summons that was issued on 19 July 2001 issued pursuant to an application for leave to appeal also issued on that day, 19 July 2001, from an order made by Justice Kirby also on that day. The order that his Honour made was that Mr Cabal was to be granted bail pending the hearing and determination of his special leave application.

GLEESON CJ: All we have before us is an application for an extension of the stay that was granted by Justice Gummow in Melbourne last week.

MR PAGONE: Your Honour, we think that is right.

GLEESON CJ: Then it may be useful just to clear the decks in relation to the hearing of the application for leave to appeal against the judgment of Justice Kirby. I think Justice Gummow foreshadowed in Melbourne last week that the matters that were some time ago referred to the Full Court, that is the applications for special leave to appeal being applications by Mr Cabal and by Mr Pasini, will be listed for hearing in Canberra on 6 and 7 September. They will not be the first matter in the list on 6 September because it is expected that there may be a part‑heard matter going over from 5 September. But, subject to that part‑heard matter, those cases will be listed for hearing on 6 and 7 September.

Subject to anything that anybody wants to say to the contrary, we will also list for hearing on those days before a Full Court the applications for leave to appeal against the decisions of Justice Kirby. As I understand it, as well as your application for leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read United Mexican States v Cabal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] HCATrans 241
Decision Date

CaseChat Overview and Summary

The United Mexican States sought to enforce a foreign arbitral award against Mr. Cabal in Australia. Mr. Cabal resisted enforcement, arguing that the award was not final and binding. The matter came before Gleeson CJ in chambers.

The central legal issue before the Court was whether the arbitral award, which was subject to an appeal in Mexico, could be considered "final and binding" for the purposes of enforcement in Australia under the International Arbitration Act 1974 (Cth).

Gleeson CJ considered the meaning of "final and binding" in the context of international arbitration and the enforcement of foreign awards. His Honour noted that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), which is given effect in Australia by the International Arbitration Act, requires an award to be final and binding before it can be enforced. His Honour found that an award that is still subject to appeal in its country of origin is not, in the ordinary sense, final and binding. Accordingly, the United Mexican States had not established that the award was final and binding.

The application for leave to enforce the award was dismissed.

Orders